Colorado Supreme Court Issues Philosophically Divided Decision on TABOR Initiative

Majority sees ballot question as direct and simple, but dissent sees broad consequences

A ballot measure to repeal Colorado’s Taxpayer Bill of Rights passed Supreme Court scrutiny in a decision released last Monday. The ballot initiative to repeal TABOR is written as simply as possible, said the court, so it meets the state Constitution’s single-subject requirement. The decision sends it back to the Title Board.

The initiative is two short sentences: “Be it Enacted by the People of the State of Colorado: Section 1. In the constitution of the state of Colorado, repeal section 20 of article X.” The state Title Board refused to set a title on the basis the ballot question doesn’t constitute a single subject, a requirement in Colorado’s Constitution. The board denied a rehearing. As representatives of the initiative’s proponents, Carol Hedges, executive director of the Colorado Fiscal Institute, and former Judge Steve Briggs petitioned the Supreme Court to review the Title Board’s decision.

“The initiative could not be written more simply or directly,” wrote Justice Richard Gabriel in the opinion for In re Ballot Title #3.  “It essentially asks voters a single question: should TABOR be repealed in full?”

The court found the initiative meets all the Constitution’s single-subject requirements: It has only one general objective; it doesn’t put incongruous subjects in one measure; the subject matter is connected; and the initiative doesn’t appear to contain hidden information intended to surprise or trick voters into voting a particular way.

The opinion clarified the court is not making an exception to the single-subject rule for repeal ballot questions. “Rather, as our above analysis demonstrates, we are merely applying settled principles of our single-subject jurisprudence to the initiative now before us.” The opinion is case-specific, and according to the majority, doesn’t make any wide-sweeping rules about ballot measures. Even when rhetoric paints a decision as a major sea change in a particular area of law, “the reality usually falls far short of that,” said Recht Kornfeld shareholder Mark Grueskin. “I don’t know that yelling fire in this theatre is necessarily warranted.”

He talked about a 2006 Colorado Supreme Court decision that struck down a ballot initiative on the single-subject premise. The initiative would have prohibited access to non-emergency state and local government services by people unauthorized to be in the U.S. The court decided the initiative contained at least two unrelated purposes. Grueskin said at the time popular rhetoric characterized the decision as a new interpretation of the single-subject requirement, but in reality it hasn’t been cited much since.

A Philosophical Divide

Justice Monica Márquez had a much different view of the decision’s impact. She took the majority to task in a 15-page dissent, which Justice Brian Boatright joined, and didn’t temper  her disagreement by looking for any common ground. She believes interpreting the ballot initiative as a single subject “rewrites history, the text of article V, section 1(5.5) of the Colorado Constitution, and close to a quarter century of this court’s case law.” The majority decision overlooks the role TABOR played in the single-subject requirement’s genesis later, she wrote. And although the majority said its ruling didn’t create any new exceptions to the single-subject rule for repeal initiatives, Márquez believes otherwise.

TABOR itself has multiple subjects, Márquez wrote, because it has implications for several facets of the government’s ability to raise and spend money. 

Besides requiring a public vote for any tax increases or government debt, TABOR puts a cap on the amount of tax revenue the government can keep each year. It also says elections related to TABOR or taxes can only take place in odd-numbered years.

“One of the fundamental disagreements between the majority and the dissent here is in applying the single-subject requirement to a repeal, whether you’re looking at the general objective of the repeal itself … or whether you look within TABOR or in other initiatives and see what is actually going to be repealed if the voters decide to pass the initiative,” said Brownstein Hyatt Farber Schreck associate David Meschke. He added it seems the majority predicated its decision on an assumption people in Colorado are generally familiar with what TABOR is, so they’d understand the general objective in repealing it.

Márquez also disagreed with the majority treating as dicta the precedent In re Proposed Initiative 1996-4, which would have repealed and reenacted several individual parts of TABOR. The Title Board denied to set a title based on the single-subject requirement, which the Supreme Court upheld. In this case, the majority found the precedent was distinct because the ballot question didn’t seek a total repeal of TABOR. 

“Yet by ignoring our actual holding and rationale in Proposed Initiative 1996-4, the majority blithely deems decisions spanning close to a quarter century that have relied on that precedent as not ‘analytically sound,’ and ‘disapprove[s]’ an entire body of this court’s case law,” Márquez wrote. “In reality, today’s decision necessarily overrules those cases, and does so without justification or regard for principles of stare decisis.”

The Title Board’s decision here can’t be appealed further, but Brownstein shareholder Sarah Mercer said the title set by the board in light of the Supreme Court’s decision could get appealed separately. She added since the ballot question is so simple and ballot titles are intended to be descriptive, the initiative could end up with a title that’s longer than the question itself.

“It will be interesting to see if the proponents don’t like that.”

—Julia Cardi

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